Powers of Attorney - Making Decisions For People Who Cannot Make Their Own
It is a fact of life that many of us will grow old before we finally pass away. Since we are living to ever greater ages (the current life expectancy in Australia for males is 79 and females, 84) we are seeing increasing incidences of debilitating diseases such as dementia. As dementia or other illnesses progress, a person can very rapidly lose the ability to make decisions for themselves regarding their property, where they live or what medical treatment they do or do not receive. This can place on their partner, or next-of-kin, the additional burden of applying to the ACT Civil and Administrative Tribunal to become their Guardian or Manager to get powers of attorney.
The Guardianship Tribunal
The ACT Civil and Administrative Tribunal includes the Guardianship Tribunal. The tribunal is tasked with the appointment oversight of Guardians and Managers. Guardians are empowered to make decisions in relation to the health and welfare of the person, while the Managers are empowered to make decisions in relation to the person’s financial and property affairs.
Once a Guardian and/or Manager is appointed, the Guardianship Tribunal must review the appointment at least once every three years, though it can be done more regularly if the Tribunal decides it is necessary. This places a need for the Guardian and/or Manager to attend the Tribunal at least once every three years. If other friends or family members wish to contest the appointment then solicitors can become involved (although the Guardianship Tribunal is normally a ‘lawyer-free’ zone).
The Guardianship Tribunal does not make such appointments on behalf of another lightly, however, and will only appoint someone as Guardian or Manager when there is a need to make decisions for a person. When there is no longer a need for decisions to be made the appointment of the Guardian or Manager is likely to cease. However, should it become necessary to make decisions again in the future a further application will need to be made and the appointment can be resumed, or a different appointment can be made.
The Guardianship Tribunal is also empowered to oversee the actions of an Attorney under an Enduring Power of Attorney.
Planning for the Future
Sadly, it is not only older people who lose capacity. We all too often hear stories of young people who, as the result of a disease or an accident, lose the capacity to make decisions for themselves. As no one is invincible, young people should also plan for the unlikely event that they may not be able to make decisions for themselves in the future.
By preparing a valid Enduring Power of Attorney in advance a person can plan for the worst by appointing someone of their own choosing to act as their attorney in relation to property, personal care and medical care matters.
The person making the Enduring Power of Attorney may appoint more than one attorney and different attorneys for each of the different functions. The Enduring Power of Attorney may also set out conditions or directions for certain types of decisions. For example, restricting the power over finances to certain assets or dealing with end of life matters. Attorneys do have a great deal of autonomy so only trusted people should be appointed.
The power to deal with medical and personal care matters only comes into force if the person is no longer able to make decisions for themselves. The attorney’s authority over financial matters can commence immediately, on a date of the person’s choosing or when the person loses decision-making capacity. It is useful in some contexts to have the power commence immediately. However, it is most common for the power to commence only when the person loses capacity. Enduring Powers of Attorney are designed to give broad powers and flexibility to enable decisions to be made while a person is incapacitated.
There are times when a person has capacity but it is convenient or necessary to have someone else act on their behalf. In this case, a General Power of Attorney may be useful. A General Power of Attorney may empower an attorney to act for a specific purpose (e.g. to sign contracts and other documents for the sale or purchase of a property) or for a specified time (e.g. while the person is overseas). An appointment under a General Power of Attorney is only effective while the person continues to have capacity.
For Enduring and General Powers of Attorney the attorney must act only in the interests, or pursuant to the specific instructions, of the person who has lost the ability to make decisions for themselves. Powers of Attorney, whether Enduring or General, are fundamentally empowering and protective for the person making it – and you never know when they might be useful.
Bradley Allen Love Lawyers are specialists in Will and Estate Planning and are able to prepare Enduring Powers of Attorney for all Australian jurisdictions and appear in the Guardianship Tribunal.